Poland submits reply to EU over ECJ rulings on disciplinary chamber for judges

The Polish government says it met yesterday’s deadline to inform the European Commission of how it intends to comply with two Court of Justice of the European Union (CJEU) rulings against Poland’s disciplinary regime for judges.

Polish officials said that no new cases were being accepted by the chamber, but that it could not intervene to stop ongoing proceedings. The government added that it would “continue reforms of the judiciary”, including “in the areas of judges’ responsibility”.

Warsaw was responding to two European rulings handed down by the court in July. The European Commission had set a one-month deadline of 16 August for Poland to reply or face financial sanctions.

On 14 July, the CJEU ordered the disciplinary chamber of Poland’s Supreme Court – controversially established as part of the government’s judicial overhaul and whose legitimacy has been rejected by the Supreme Court itself – to be entirely suspended.

The following day, the European court found that the entire disciplinary regime introduced by the government as part of its judicial policies was incompatible with EU law and “does not provide all the guarantees of impartiality and independence”.

The government says that, in its response issued yesterday, it addressed the commission’s “doubts” regarding a verdict by Poland’s Constitutional Tribunal from 14 July, which stated that certain interim orders by the CJEU violate the Polish constitution, therefore suggesting that they may be ignored.

It told the commission that the tribunal “has been reviewing the constitutionality of EU law since Poland’s accession to the EU” and remains supreme over “statutes and ratified international agreements” according to the “principle of national sovereignty”.

The government also says it had also told the commission that it will “continue reforms of the judiciary” – including “in the areas of judges’ responsibility” – which will be “aimed at improving the efficiency of this system”.

The response also pointed to “over a dozen” of the “most important judgements” of the constitutional courts of other EU member states – such as the Czech Republic, Denmark, Germany, France, Romania and Spain – in “similar cases”. The government argued that “the problem of the relationship between national law and EU law” is thus more widespread.

Last month, the Polish government initially announced that it was “not planning” to implement the CJEU rulings. But that stance subsequently softened, with senior figures indicating a willingness to compromise.

Prime Minister Mateusz Morawiecki admitted that PiS’s judicial overhaul had “not lived up to expectations”, and that further “reform” was necessary. The head of the party’s parliamentary caucus announced that legislation to “in a sense meet the expectations of the [CJEU]” had been prepared.

In early August, the chief justice of the Supreme Court, Małgorzata Manowska, ordered the disciplinary chamber not to accept new cases. That marked an apparent reversal from her previous stance, when she had indicated that she saw no reason to comply with the CJEU order to suspend the chamber.

In a sign of internal disagreement, the hardline justice minister, Zbigniew Ziobro, who remains opposed to compliance with the CJEU rulings, criticised Manowska for “taking actions contrary to Polish law, both statutory and constitutional”. He called for “EU aggression to be met with a tough response”.

In its Monday letter, the government informed the commission about these steps. However, it noted that the government was unable “without violating the principle of the independence of the judiciary” to suspend ongoing disciplinary cases or the “consequences of decisions”.

It thus remains unclear whether Poland’s response will satisfy Brussels, as questions remain on what to do about ongoing disciplinary proceedings. It is also unclear whether the promised changes to the disciplinary regime will be compliant with EU law.

A decision from Brussels is most likely in September, after the EU returns from its summer recess, reports Politico Europe. The decision may also help to move forward the disbursement of €58 billion in Covid recovery fund money for Warsaw that has so far been withheld.

Main image credit: Krystian Maj/KPRM (under CC BY-NC-ND 2.0)

Maria Wilczek

Maria Wilczek is deputy editor of Notes from Poland. She is a regular writer for The Times, The Economist and Al Jazeera English, and has also featured in Foreign Policy, Politico Europe, The Spectator and Gazeta Wyborcza.